Eighteen Years On: A Re-Review

The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment

BY WILLIAM N. ESKRIDGE, JR. NEW YORK: THE FREE PRESS, 1996.

author. Judge, U.S. Court of Appeals for the Seventh Circuit;
Senior Lecturer, University of Chicago Law School.

In 1992 I published a book called Sex and Reason, a primarily law-and-economics study of human sexual
behavior and its regulation. I discussed homosexuality at some length (see the
index references to “Homosexuality” and to “Homosexuals”), touching briefly on
homosexual marriage.1 Two years later, Yale Law School Professor
William Eskridge published a book advocating a right to such marriage: The Case for Same-Sex Marriage: From Sexual
Liberty to Civilized Commitment. In the following year I reviewed his book.2 Seventeen years later I wrote the
opinion for my court invalidating Indiana’s and Wisconsin’s prohibitions of
same-sex marriage.3 And on June 26 of this year the Supreme
Court invalidated such prohibitions in all states.4
The editors of this Journal asked me
to “re-review” Professor Eskridge’s book in light of the change in the law and
in my views relating to homosexual marriage since my 1997 review.

I am going to start well before 1997. I am going to trace the
evolution of my thinking about homosexuality back to 1952, when I was thirteen years
old. It was about then that I first heard about homosexuality, though I don’t
remember how I heard about it; I’m sure it was never mentioned by my parents. I
considered it incredibly weird. In part for that reason I didn’t think I’d ever
actually meet a homosexual. Not that I felt hostility toward them, any more
than I did toward Eskimos; they seemed alien, but not threatening, though I
recall reading Jean-Paul Sartre’s short story The Childhood of a Leader—a harrowing tale of homosexual
seduction. Eventually I learned about homosexuals such as Marcel Proust, Oscar
Wilde, Aaron Copland, Benjamin Britten, and Alan Turing who had made important
contributions in a variety of fields. But I still thought I’d never meet one,
and I went through college without thinking that any student or teacher I met
was homosexual, though in retrospect I realize that one of my finest teachers,
and several students I knew, were. As a law professor from 1968 to 1981, I met
the occasional openly homosexual professor or student, but homosexuality as a
subject of study did not interest me.

My 1992 book Sex and
Reason, my first academic foray into sex, originated in a case my court had
heard en banc that involved nude dancing in a strip joint—the Kitty Kat
Lounge—in South Bend, Indiana. The State wanted to forbid such dancing,
primarily on the ground that it was likely to promote illegal activity, mainly
prostitution. My court held that the dancing was protected by the First
Amendment’s Free Speech Clause, but the Supreme Court reversed.5
I was struck by the ignorance of the lawyers and judges (myself included) about
erotic dancing, which has a long and interesting history going back to Salome’s
(probably mythical) “Dance of the Seven Veils,” a striptease, and indeed
earlier, to the ancient Greeks’ satyr plays. I thought it odd that judges
should be opining on matters of sex without having any systematic knowledge of
the subject. During the gestation of our court’s decision I did a good deal of
research into the history of nude dancing, and of nudity in art more broadly,
and ended up writing a very long (for me) concurring opinion, though ultimately
to no avail.6
And the book followed.

There was little interest in homosexual marriage in 1992. No
state recognized such marriage; the first to do so was Massachusetts in 2004.7
The first foreign country to do so was the Netherlands in 2001, though Sweden
and Denmark already recognized “civil unions,” which gave homosexual couples
most of the rights of married couples.8
In 1992, public opinion polls revealed that only twenty-seven percent of
Americans favored allowing homosexual marriage;9
today a majority do,10
and the percentage is likely to grow as a result of the Supreme Court’s
decision, the decline of religious orthodoxy, and the “normalization” of
homosexuality through marriage. By the last point I mean that marriage is
regarded as a badge of normalcy; “normal” people marry and married homosexuals
acquire that badge.

My book was “pro-homosexual” by the standards of the time. I
rejected the notion still current then (but no longer) that heterosexuals could
be “recruited” to be homosexual rather than that homosexual preference is an
innate characteristic. I argued in like vein that homosexuals could not be
converted to heterosexuality. I argued that they should be allowed to serve in
the armed forces (they weren’t then, at least officially; oddly there had been
no bar to their serving in the armed forces before World War II).

I was agnostic about whether homosexual marriage should be
permitted. I listed some objections (of which one, now obsolete and probably
silly even when I made it, was: “Should we worry that a homosexual might marry
a succession of dying AIDS patients in order to entitle them to spouse’s
medical benefits?”11). I concluded
that “[n]one of these points is decisive against permitting homosexual
marriage. All together may not be. The benefits of such marriage may outweigh
the costs.”12
But since, at the time I was writing, authorizing homosexual marriage was
simply out of the question, I added that “maybe the focus should be shifted to
an intermediate solution that would give homosexuals most of what they
want”—and I pointed to Denmark’s “registered partnership” and Sweden’s
“homosexual cohabitation”13 as examples
of such a solution.

Professor Eskridge’s book, published as I said four years
after mine, took issue with a statement in my book that a number of “incidents
of marriage”14—such as inheritance, social
security, income tax, medical benefits, and life insurance—“were designed
with heterosexual marriage in mind, more specifically heterosexual marriages
resulting in children. They may or may not fit the case of homosexual marriage;
they are unlikely to fit it perfectly. Do we want homosexual couples to have
the same rights of adoption and custody as heterosexual couples?”15
Eskridge’s rebuttal was persuasive: “[T]he law of marriage focuses on the
interpersonal commitment and not the heterosexuality of the partners. To the
extent the law of marriage focuses on children (by and large it does not), it
is agnostic as to where the children come from.”16
As for my concern with a homosexual marrying “a succession of dying AIDS
patients,”17
Eskridge brushed that off as a “lavender herring.”18

He granted that Denmark’s “registered partnership” law would
give homosexual couples most of the rights of married couples (except
adoption), but said he “would oppose a halfway house to marriage,”19
which was his characterization of the Danish law,20
and he went on to argue for a constitutional right to same-sex marriage, making
almost all the arguments that have been advanced in the recent wave of
litigation culminating in the Supreme Court’s decision in Obergefell v. Hodges.21

In my review I called his book “a work of deep and scrupulous
(though not flawless) scholarship—unstrident, unpolemical, and written
with extreme lucidity and simplicity so that it is fully accessible to the
nonlawyer. Except for the treacly vignette of lesbian love with which the book
opens, it is a model of advocacy scholarship.”22
I noted that he argued both “for legislative reform: state marriage statutes
(or their interpretation) should be changed to permit people of the same sex to
marry . . . [and] that the courts in the name of the Constitution should force
acceptance of same-sex marriage on all the states at once.”23
I said that he’d made a powerful argument for legislative reform and that I
would not be troubled if a state were to be persuaded by it, but that I found
his constitutional case unconvincing. Distinct from either point, I noted his
questionable historical claims, such as that “we can infer that ‘same-sex intimacy
was common in [ancient] Egypt’ from the denunciation of the Egyptian practice
of same-sex marriage in Leviticus.”24

I said,

I do think (Eskridge is vague about this) that
homosexual couples ought not be granted the identical rights of adoption as
heterosexual couples without further study of the effects of such
adoption—not on the sexual orientation of the child, which I believe to
be invariant to the adoptive parents’ orientation as to other environmental
factors, but on the child’s welfare in the broadest sense. Apart from this
reservation, I find Eskridge’s argument for recognizing homosexual marriage
quite persuasive—but only as an argument addressed to a state legislature.25

As a constitutional
argument, I said, it was not convincing, for though Eskridge had made “good
lawyers’ arguments,” he had made

the tacit assumption that the methods of legal
casuistry are an adequate basis for compelling every state in the United States
to adopt a radical social policy that is deeply offensive to the vast majority
of its citizens and that exists in no other country of the world, and to do so
at the behest of an educated, articulate, and increasingly politically
effective minority that is seeking to bypass the normal political process for
no better reason than impatience, albeit an understandable impatience.
(Americans are an impatient people.) A decision by the Supreme Court holding
that the Constitution entitles people to marry others of the same sex would be
far more radical than any of the decisions cited by Eskridge. Its moorings in
text, precedent, public policy, and public opinion would be too tenuous to
rally even minimum public support. It would be an unprecedented example of
judicial immodesty. That well-worn epithet “usurpative” would finally fit . . .
. No nation in the world, no state of the United States with the uncertain and
incipient exception of Hawaii (by no means a typical state, in any event),
recognizes homosexual marriage and equates it to heterosexual marriage. An overwhelming
majority of the American people are strongly opposed to it; even the homosexual
community is divided over it (hence chapter 3 of Eskridge’s book). A complex
and by no means airtight line of argument would be necessary plausibly to
derive a right to homosexual marriage from the text of the Constitution and the
cases interpreting that text—a tightrope act that without a net
constituted by some support in public opinion is too perilous for the courts to
attempt. Public opinion may change—Eskridge’s book may help it
change—but at present it is too firmly against same-sex marriage for the
courts to act.

. . .
[P]ublic opinion is not irrelevant to the task of deciding whether a
constitutional right exists. When judges are asked to recognize a new
constitutional right, they have to do a lot more than simply consult the text
of the Constitution and the cases dealing with analogous constitutional issues.
If it is truly a new right, as a right to same-sex marriage would be, text and
precedent are not going to dictate the judges’ conclusion. They will have to go
beyond the technical legal materials of decision and consider moral, political,
empirical, prudential, and institutional issues, including the public
acceptability of a decision recognizing the new right.

Reasonable considerations also include the
feasibility and desirability of allowing the matter to simmer for a while
before the heavy artillery of constitutional rightsmaking is trundled out. Let
a state legislature or activist (but elected, and hence democratically
responsive) state court adopt homosexual marriage as a policy in one state, and
let the rest of the country learn from the results of its experiment. That is
the democratic way, and there is no compelling reason to supersede it merely because
intellectually sophisticated people of secular inclination will find Eskridge’s
argument for same-sex marriage convincing . . . .

. . .
Similarly, if no other country in the world authorizes such a thing, this is a
datum that should give pause to a court inclined to legislate in the name of
the Constitution . . . .

. . . The
country is not ready for Eskridge’s proposal, and this must give pause to any
impulse within an unelected judiciary to impose it on the country in the name
of the Constitution.26

In retrospect I don’t like the first quoted paragraph of the
preceding passage, especially the reference to “impatience.” But I think the
rest of that passage was okay for its time, and that a decision by the Supreme
Court in 1997 establishing a right to homosexual marriage in all states would
have been a mistake. A change in public opinion was required to make the
judicial creation of such a right acceptable. The change occurred. By 2011 a
majority of Americans supported authorizing same-sex marriage. On the eve of
the Obergefell decision, thirty-five states
and the District of Columbia recognized same-sex marriage, though mainly as a
result of lower-court decisions based on implications of the United States v.Windsor decision discussed below.27
By 2015 the time was ripe for the Supreme Court to lay the issue to rest.

Between 1997, when I reviewed Eskridge’s book on same-sex
marriage, and 2013, when I reviewed two books (neither by him) on same-sex marriage,28 my interest in the subject flagged.
Yet in a book review published in 2003 (which I had completely forgotten until
September 2015), I discover with some surprise that I opposed, not homosexual
marriage as such, but the creation by the Supreme Court of a constitutional right to such marriage, on grounds
not dissimilar to those advanced by the dissenters in Obergefell. In a typical passage I said,

I am dubious about interpreting the Constitution to
authorize the Supreme Court to make discretionary moral judgments that offend
dominant public opinion. Nothing in the Constitution or its history suggests a
constitutional right to homosexual marriage. If there is such a right, it will
have to be manufactured by the justices out of whole cloth. The exercise of so
freewheeling a judicial discretion in the face of adamantly opposed public
opinion would be seriously undemocratic. It would be a matter of us judges, us
enlightened ones, forcing our sophisticated views on a deeply unwilling
population. It would be moral vanguardism.29

At the time I wrote that review, there was still overwhelming
public opposition to same-sex marriage, in light of which it might indeed have
been imprudent for the Court to have declared a constitutional right to it. By
2013, when I wrote the other review that I’ve mentioned,30
public support had swung strongly in favor of allowing such marriages. But, as
I said, my interest in the subject had flagged, and the books I reviewed
focused on the inconclusive question of whether a Supreme Court decision
creating a constitutional right to same-sex marriage would cause a backlash
that might undermine the Court’s authority and have other untoward
consequences.

My same-sex marriage case, Baskin v. Bogan,31 invalidating
as I said earlier the Indiana and Wisconsin prohibitions of same-sex marriage,
was argued in August 2014 and decided in September, just months before Obergefell. By the summer of 2014, the
tide was running strongly in favor of invalidating such prohibitions, although
it was not certain that the Supreme Court would go with the tide. I do think
the change in public opinion was decisive for all the courts that ruled in
favor of creating a constitutional right to same-sex marriage. Law is not a
science, and judges are not calculating machines. Federal constitutional law is
the most amorphous body of American law because most of the Constitution is
very old, cryptic, or vague. The notion that the twenty-first century can be
ruled by documents authored in the eighteenth and mid-nineteenth centuries is
nonsense.

The arguments against same-sex marriage were never strong.
They didn’t need to be when there was overwhelming passionate objection to such
marriage. When the objection faded (not completely, but to a great extent, and
with remarkable speed), the absence of strong arguments against same-sex
marriage, and the presence of strong arguments in favor of it, became the decisive
factors guiding judicial action.

But I want to say a little more about the change in public
opinion that set the stage for Obergefell,
and this will allow me to return to where I started in this Review, with my
youthful discovery that there was this strange phenomenon called homosexuality.
In those days a great many homosexuals concealed their homosexuality from
heterosexuals in order to avoid the discrimination against homosexuals that was
then rampant. The result was that those who flaunted their
homosexuality—whose mannerisms or dress or occupations signaled
homosexuality—were taken by heterosexuals to be typical of homosexuals,
and were derided, especially since, in a prissier era than today, homosexual
sex was criminalized by many states. (I am speaking primarily of male homosexuals,
who have always received more critical attention than lesbians.) But beginning
in the 1960s with the Alfred Kinsey reports revealing a greater amount of
promiscuity than conventional people realized existed, there was a loosening of
sexual mores in general and among its effects was an increasing tolerance of
homosexuals. Gradually, as that tolerance grew, fewer homosexuals bothered concealing
the fact of their being homosexual. As homosexuals not readily recognizable as
such by reason of mannerism, dress, or occupation began to acknowledge, or at
least cease denying or trying to conceal, their homosexuality, heterosexuals
discovered that most homosexuals are indistinguishable in any respect except
sexual preference from heterosexuals; and so it became difficult to understand
why they should be discriminated against. The Supreme Court, first in Romer v. Evans, which held that a state
could not enact a law forbidding municipalities to provide protection against
discrimination against homosexuals,32
then in Lawrence v. Texas, which
invalidated laws criminalizing homosexual sex between consenting adults,33
and then in United States v. Windsor,34
invalidating the federal Defense of Marriage Act, which had denied federal
marriage benefits to homosexual couples married in states that authorized
same-sex marriage, set the stage for the Obergefell
decision, a decision anticipated by a number of lower federal courts, and also
state courts, after Windsor. Indeed
Justice Scalia, in his characteristically scathing dissenting opinion in Windsor, said that the majority opinion
signaled that the Court would invalidate all state laws forbidding same-sex
marriage.35
And sure enough, two years later, in Obergefell
the five-Justice majority in Windsor
confirmed Justice Scalia’s fears. By this time, the majority could be confident
that a combination of public opinion increasingly favorable to allowing
same-sex marriage with the flood of lower-court cases invalidating state laws
forbidding such marriage would deflect the indignation that such a decision
would have aroused in 1996, or perhaps in any year before 2015. And so it has
proved.

Justice Kennedy, Catholic and conservative, the critical
swing vote and majority-opinion author in the cases involving homosexual
rights, deserves great credit for his political and intellectual independence
in regard to homosexuals. Big business also deserves credit. The biggest U.S.
corporation (net worth seven hundred billion dollars) is Apple. Its CEO,
Timothy Cook, is an “out of the closet” homosexual. It is hard to disrespect
such a star; and, as far as I know, no one does. Many other prominent people
are openly homosexual as well. Big business (and small business as well),
regardless of the sexual preferences of its CEOs, dislikes discrimination
against homosexuals (including denial of marriage rights) because homosexuals
tend to have above average income and education, making them attractive to
business as customers and employees. Business is also concerned that hostility
to homosexuals will turn off prospective customers and employees who, though
heterosexual themselves, consider, as increasingly they do, such hostility to
be a form of bigotry.

So Eskridge’s position has triumphed. It’s a shame that
Justice Kennedy’s opinion did not cite his book. Nor did any of the four
dissents cite his book; nor for that matter had I cited it in my opinion in Baskin. I had forgotten his book,
forgotten my review of it, and forgotten what I had said about same-sex
marriage in Sex and Reason and the
subsequent book reviews that I mentioned here. A prophet before his time,
William Eskridge has the satisfaction of having finally been vindicated.

Posner, supra note 1, at 313. More substantial reasons that I noted for not permitting homosexual marriage, though I no longer think them valid, are that homosexual marriages would not be as stable or rewarding as heterosexual ones and that allowing homosexuals to adopt children would be problematic. Seeid. at 312-13.

Eskridge, supra note 14, at 119. I don’t know what a “lavender herring” is, but it doesn’t sound good.

19

Id. at 121. Oddly, Professor Eskridge’s book gives little weight to adoption rights as an important element of marriage for homosexuals. There is no index reference to “adoption.”

20

Id. at 122.

21

135 S. Ct. 2584 (2015).

22

Posner, supra note 2, at 1578 (footnote omitted).

23

Id. at 1578-79.

24

Id. at 1580 (alteration in original) (quoting Eskridge, supra note 14, at 19). This is an example of a weakness inherent in advocacy scholarship, a type of scholarship signaled by the first words of his book’s title, “The Case for.” He acknowledges in his book that he is himself homosexual, which means that he has a personal stake in the legal position that he advocates, regardless of whether he has any interest in being married; allowing homosexual marriage is bound to boost the social status of homosexuals.

25

Id. at 1584. I don’t know why I was worried about homosexuals adopting children. In the opinion for my court invalidating Indiana’s and Wisconsin’s prohibitions on same-sex marriage, I emphasized the importance of adoption by homosexual couples of children who would otherwise be confined to foster care. Baskin v. Bogan, 766 F.3d 648, 654, 662-64 (7th Cir. 2014).

Richard A. Posner, How Gay Marriage Became Legitimate: A Revisionist History of a Social Revolution, New Republic (July 24, 2013), http://www.newrepublic.com/article/113816/how-gay-marriage-became-legitimate [http://perma.cc/2ZS7-GCWZ] (reviewing Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (2012) and Jason Pierceson, Same-Sex Marriage in the United States: The Road to the Supreme Court (2013)).